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The Adventure of the Fading Copyright

By Deborah Yaffe, Jun 19 2014 01:00PM

The explosion of Jane Austen fan fiction over the past fifteen to twenty years was possible because of one salient fact: Austen’s books, published between 1811 and 1818, have been out of copyright for a century or more.

Harry Potter fans may noodle about online with the further adventures of Harry, Ron and Hermione, but if they try to publish their creative reimaginings, they will hear from J.K. Rowling’s intellectual-property lawyers, a far more frightening bunch than the Dementors. But you can do anything you want to Elizabeth and Darcy; Austen may spin in her grave, but she can’t sue.

Researching my book Among the Janeites, I often wondered if any other classic literature had inspired a similar amount of rewriting and sequelizing. One or two of my interviewees suggested that the Sherlock Holmes stories, whose fans are at least as dedicated and eccentric as the Janeites, might be the only comparable case.

But the copyright status of the Holmes stories, published between 1887 and 1927, is complicated, at least in the United States: although the earliest stories are clearly out of copyright, the last ten, published between 1923 and 1927, are not. The late Holmes stories will enter the US public domain between 2018 and 2022. (In other countries, the copyright expired much earlier.)

Relying on the still-copyrighted status of those late stories, the estate of Holmes’ creator, Sir Arthur Conan Doyle, has demanded that publishers of Holmesian fan fic pay licensing fees, even though the earliest stories on which such homages are based are now in the public domain. Presumably, that’s put a crimp in production (though plenty of Holmesian homages are still out there, as Benedict Cumberbatch fans can attest).

This week, a panel of three federal appeals-court judges ruled against the Conan Doyle estate's latest effort to restrict publication of Holmesian fan fic, upholding a lower court’s decision. “The ten Holmes-Watson stories in which copyright persists are derivative from the earlier stories, so only original elements added in the later stories remain protected,” Judge Richard Posner wrote for a unanimous panel.